United States v. Cobos-Chachas , 445 F. App'x 53 ( 2011 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    October 3, 2011
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    FOR THE TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                   No. 10-1528
    (D.C. No. 1:10-CR-00207-REB-1)
    NICOLAS COBOS-CHACHAS,                                (D. Colo.)
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before HARTZ, Circuit Judge, HOLLOWAY and PORFILIO, Senior Circuit
    Judges.
    Nicolas Cobos-Chachas, a citizen of Mexico, pleaded guilty to unlawfully
    reentering the United States after deportation. At sentencing, the district court
    varied downward from the advisory guidelines range and sentenced him to
    thirty-eight months’ imprisonment, which was three months below the bottom of
    the advisory guideline range. Mr. Cobos-Chachas challenges the length of his
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and
    collateral estoppel. It may be cited, however, for its persuasive value consistent
    with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    sentence as substantively unreasonable in light of the sentencing factors listed in
    
    18 U.S.C. § 3553
    (a). Exercising jurisdiction pursuant to 
    28 U.S.C. § 1291
     and
    
    18 U.S.C. § 3742
    (a), we affirm.
    I.
    In 2006, Mr. Cobos-Chachas was apprehended while driving undocumented
    co-workers to a job-site. He pleaded guilty to transporting an illegal alien in
    violation of 
    8 U.S.C. § 1324
    (a)(1)(A)(ii), (B)(ii), an offense classified as an
    aggravated felony, see United States v. Martinez-Candejas, 
    347 F.3d 853
    , 857
    (10th Cir. 2003). For the offense, he was sentenced to time served and deported
    to Mexico.
    Mr. Cobos-Chachas returned to this country in September 2007. Upon his
    arrest and detention for a traffic offense in March 2010, he admitted to an
    immigration agent that he had entered the United States after being deported. He
    was charged with unlawfully reentering the United States after deportation for
    conviction of an aggravated felony, in violation of 
    8 U.S.C. § 1326
    (a), (b)(2).
    He entered a plea of guilty in exchange for the government’s agreement to
    recommend a sentence within the advisory guideline range.
    A probation officer prepared a presentence report calculating
    Mr. Cobos-Chachas’ sentence under the applicable United States Sentencing
    Guidelines. His probation officer determined that the base offense level was
    eight. See U.S.S.G. § 2L1.2(a). Then, he added a sixteen-level enhancement
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    because Mr. Cobos-Chachas had previously been deported after conviction of an
    alien-smuggling offense. See U.S.S.G. § 2L1.2(b)(1)(A). Finally, the probation
    officer applied a three-level reduction for acceptance of responsibility. See
    U.S.S.G. § 3E1.1. The result was an adjusted offense level of twenty-one. Based
    on the offense level and a criminal history category of II, the advisory range was
    41 to 51 months’ imprisonment. The probation officer, however, recommended a
    variant sentence of 36 months primarily because Mr. Cobos-Chachas’ criminal
    history was minimal compared to other defendants charged with similar offenses.
    At the sentencing hearing, Mr. Cobos-Chachas requested a downward
    variant sentence because he had never been incarcerated for a significant length
    of time and he had family ties and business opportunities in Mexico. The
    prosecution asked for a sentence at the low end of the guideline range, but also
    suggested a possible justification for a variant sentence: the harshness of a
    sixteen-level enhancement where the prior transporting offense did not involve
    bringing illegal aliens across the border.
    The district judge imposed a sentence of 38 months, commenting that a
    “sentence variance should be granted somewhat anomalously for the reasons
    suggested by the [prosecution].” R., Vol. 2 at 50. The sentence was three months
    below the low end of the advisory guidelines range and two months above the
    probation officer’s recommendation. The district judge stated that he had reached
    -3-
    his determination after considering all the relevant information in light of the
    sentencing factors listed in 
    18 U.S.C. § 3553
    (a).
    II.
    On appeal, Mr. Cobos-Chachas argues that his sentence is substantively
    unreasonable, “prompting a deferential abuse of discretion standard.” United
    States v. Reyes-Alfonso, No. 10-2091, 
    2011 WL 3134683
    , at *6 (10th Cir.
    July 27, 2011). “Substantive reasonableness addresses whether the length of the
    sentence is reasonable given all the circumstances of the case in light of the
    factors set forth in 
    18 U.S.C. § 3553
    (a).” 
    Id., at *7
     (alteration and internal
    quotation marks omitted). Often “there will be a range of possible outcomes the
    facts and law at issue can fairly support; rather than pick and choose among them
    ourselves, we will defer to the district court’s judgment so long as it falls within
    the realm of these rationally available choices.” 
    Id.
     (internal quotation marks
    omitted).
    In conducting our review, we presume that a below-guideline sentence is
    substantively reasonable. United States v. Balbin-Mesa, 
    643 F.3d 783
    , 788
    (10th Cir. 2011). “The defendant may rebut this presumption by demonstrating
    that the sentence is unreasonable” under the § 3553(a) sentencing factors.
    Reyes-Alfonso, 
    2011 WL 3134683
    , at *7 (internal quotation marks omitted).
    Mr. Cobos-Chachas argues that a proper consideration of the § 3553(a)
    sentencing factors ordains a shorter sentence. In his view, the “minor variance”
    -4-
    granted by the district judge “was not enough” because it does not acknowledge
    that his transporting conduct was relatively trivial in comparison to the more
    serious offenses that also trigger a sixteen-level enhancement. Aplt. Br. at 8,
    9-12. Further, he states that he does not present a danger to the community and
    that a lesser sentence would provide adequate deterrence.
    The record indicates, however, that the district judge reached a sentencing
    decision after conducting an appropriate evaluation under the dictates of
    
    18 U.S.C. § 3553
    . The district judge had considered “the nature and
    circumstances of the offense and the history and characteristics of the defendant,”
    id, § 3553(a)(1) and reached a sentence that he concluded was “sufficient, but not
    greater than necessary, to comply with” statutory purposes, id., § 3553(a).
    We do not “examine the weight a district court assigns to various § 3553(a)
    factors, and its ultimate assessment of the balance between them, as a legal
    conclusion to be reviewed de novo.” United States v. Smart, 
    518 F.3d 800
    , 808
    (10th Cir. 2008). Rather, we defer “to the district court’s decision that the
    § 3553(a) factors, on a whole, justify the extent of the variance.” Id. (internal
    quotation marks omitted). Mr. Cobos-Chachas’ own perception that the
    sentencing factors compel a more marked variance does not rebut the
    presumption that his below-guideline sentence is substantively reasonable. The
    -5-
    district court did not abuse its discretion in imposing a sentence of thirty-eight
    months’ imprisonment.
    The judgment of the district court is AFFIRMED.
    Entered for the Court
    William J. Holloway, Jr.
    Senior Circuit Judge
    -6-
    

Document Info

Docket Number: 10-1528

Citation Numbers: 445 F. App'x 53

Judges: Hartz, Holloway, Porfilio

Filed Date: 10/3/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024